Government ‘created’ the crime — but court upholds convictions

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Crimes that result from police “sting” operations can be troublesome for courts, which have to decide whether the government went too far in inducing a defendant to break the law. A classic example is laid out in a new ruling by the federal appeals court in San Francisco, which found that the government “created and staged” the crime — a plot to rob a nonexistent drug house — but nevertheless upheld four men’s convictions and prison sentences.

It happened in a suburb of Phoenix, where the U.S. Bureau of Alcohol, Tobacco and Firearms was trying to halt a wave of violent holdups of homes where drugs were stored. According to the Ninth U.S. Circuit Court of Appeals, the ATF told an undercover informant, who was being paid $100 a day, to go to bars in seedy areas in July 2009 and recruit would-be robbers.

The informant found a man named Shavor Simpson, who met with an ATF agent posing as a drug courier and said he had plenty of experience and could put a crew together. The agent told him large quantities of cocaine would be stored on a certain day and they might meet resistance and need to take a hostage. When Simpson said he and another man could carry out the robbery, the agent suggested they might be outnumbered, so Simpson brought four men to meet with the agent and drive toward the supposed stash house.

On the way, they were arrested by federal agents, who found four guns in their vehicles. All four were convicted of conspiracy and sentenced to at least 10 years in prison, a mandatory minimum term for the amount of cocaine they were charged with plotting to steal. Simpson pleaded guilty and testified for the prosecution.

In their appeals, the defendants claimed they had been set up to commit a nonexistent crime by “outrageous government conduct,” the standard for overturning convictions in such cases. In a 2-1 ruling Wednesday, the appeals court expressed qualms about the ATF’s conduct but said it fell short of being outrageous.

The crime “resulted from an operation created and staged by ATF” in which the defendants were “responding to the government’s script,” Judge Raymond Fisher acknowledged in the majority opinion. He also noted that Simpson and his cohorts weren’t part of an existing gang that the government was trying to break up.

On the other hand, Fisher said, Simpson and one of his accomplices boasted to the agent about past robberies, in conversations that were secretly tape-recorded, and the men planned the holdup themselves and brought the guns.

“They were eager to commit the fictional stash house robbery, and they joined the conspiracy themselves without any great inducement or pressure from the government,” said Fisher, joined by Judge Susan Graber.

In dissent, Judge John Noonan said the four defendants were not committing or planning any such crimes until the ATF lured them with the prospects of a big payoff. He said none of the men had any previous record of federal crimes.

“The government wrote the script, found those who would act in it, and brought its dupes together so that they could be arrested,” Noonan said. With such conduct, he said, “our government has become the oppressor of its people.”

Defense lawyers said they would ask the full appeals court for a rehearing. “The whole crime was completely fabricated by the government,” said attorney Florence Bruemmer.